The Future of German Operations Outside NATO

KARL-HEINZ BÖRNER

No German soldier or airman fought in the 1991 Gulf War coalition.
No US or allied effort to coax Germany to share the combat burdens
of providing worldwide security during or after the Cold War succeeded.
In fact, since World War II German units have been constitutionally
forbidden from operating outside of Europe, or so most Germans
believed.

The perceived restriction disappeared in 1994, clearing the way
for Germany to participate in future missions around the world.
Did the new challenges of the post-Cold War era awaken the German
people to the need to change their constitution so that Germany
could fulfill the role of a great power? Should one expect Germany
to leap to the front of the queue of nations supplying military
forces to UN operations? The answers to these and similar questions
lie in German law and German politics. This article explains the
decision that changed German policy and suggests some implications
of the change.

For years a restrictive interpretation of Germany's constitution,
or Basic Law, regarded as unconstitutional any international missions
by German armed forces exceeding common self-defense within the
geographical areas defined by NATO or the Western European Union
(WEU).[1] Conversely, most constitutional lawyers supported a
more extensive interpretation of the Basic Law, one that differentiated
between national or collective defense and other international
missions outside NATO territory.[2] This situation gave rise to
vigorous debate whenever German forces were employed outside NATO
territory to fulfill UN missions.[3] Operations of the German
military in Somalia, in the Adriatic, and even on NATO AWACS flights
over the former Yugoslavia prompted two political parties in the
German legislative assembly, the Bundestag,[4] to ask the Federal
Constitutional Court[5] to settle the matter once and for all.

On 12 July 1994 that court issued the following ruling:

In the proceedings on the dispute over the deployment of German
forces the Federal Constitutional Court (Second Panel) has ruled
that the Federal Republic of Germany is at liberty to assign German
armed forces in operations mounted by the North Atlantic Treaty
Organization (NATO) and Western European Union (WEU) to implement
resolutions of the Security Council of the United Nations (UN).
The same applies to the assignment of German contingents to peacekeeping
forces of the UN.

. . . The Court also finds, however, after thoroughly analyzing
the provisions of the Basic Law relating to the status of the
armed forces in the constitutional system, that the Federal Government
is required to obtain the Bundestag's explicit approval for each
deployment of German armed forces. Such approval must in principle
be obtained prior to their deployment. The Bundestag must decide
on the deployment of armed forces with a simple majority. Once
parliament has given its approval, the decision on the modalities
of deployment, especially the question of the size of the force
and the duration of their deployment and on necessary coordination
within and with the governing bodies of international organizations,
falls within the government's sphere of competence. The nature
and extent of parliament's involvement is for parliament itself
to decide within the scope of these constitutional constraints.

As noted in a subsequent press release by the court, the decision
"legitimized the long-disputed admissibility of the deployment
of German forces [outside the NATO area] under a United Nations
mandate but at the same time made their deployment in each individual
case subject to the approval of the German Bundestag."[6]

In light of this landmark ruling, it remains to be seen how German
forces may now be employed outside of the NATO area. Not only
must there be a decision to deploy and employ those forces, but
criteria for determining when to commit German forces must be
developed. The will of the German people to support such missions
also will have to be determined.

Implications of the Ruling

General Klaus Naumann, Chief of Staff of the German armed forces,
commented shortly after the ruling that:

Germany's 1949 Constitution does not prohibit participation in
multilateral peacekeeping or combat operations, and . . . German
troops are permitted to join military missions abroad if parliament
approves. With that finding, German foreign policy has regained
sovereignty, freeing Germany to act fully in concert with other
members of the community of nations to which it belongs and to
accept the burdens that go along with such an international role.[7]

In fact, with the unification of Germany on 3 October 1990 and
the termination of all World War II victors' rights, Germany had
already regained full sovereignty and was hindered from participation
in international military affairs only by its own internal political
and legal processes.

One could have developed an ambiguous understanding of the Constitutional
Court's ruling by reading German newspapers shortly after the
decision. Politicians announced that henceforth participation
of German soldiers in joint operations would be legal. Such statements
were misleading, because operations of that kind had in fact always
been legal. Since many politicians' interpretations of the German
Basic Law were flawed, policy positions articulated to the German
people and to Germany's allies misled both audiences.

Now, after the ruling of the High Court, Germany faces a new political
challenge. As General Naumann suggested, "Gone are the days
when [German politicians] could hide behind a strict interpretation
of the constitution that was held to circumscribe severely German
participation in UN and NATO operations."[8] Criteria will
be developed gradually to decide when, where, and to what extent
German soldiers will be part of multilateral military missions.

The remainder of this analysis is organized around responses to
five questions posed by Dr. Philip Crowl, questions that "strategists
must ask before they commence a war, or before they take actions
which might lead to war, or before they undertake a wartime campaign,
or before they end a war in which they are already engaged."[9]
The questions, similar to those suggested in the Weinberger Doctrine
and General Colin Powell's list of considerations for determining
when to employ armed force, will shape responses to proposed deployment
of Bundeswehr forces in support of humanitarian operations or
in support of NATO, UN, or European Union initiatives throughout
the world.

What is it about?

Even with a relatively secure peace and a promising policy of
détente between West and East in Europe, every larger state
has to rely on armed forces, not only as a counter to a possible
threat, but as an attribute of sovereignty and of the national
independence which the force is supposed to protect.

The German armed forces, the Bundeswehr, serve as a striking example.
Without Germany's military contributions to NATO or the West European
community, the nation's goal to regain full sovereignty and equal
rights within the international political environment would have
been highly problematic. Whether the Bundeswehr will be as significant
for the Federal Republic's future as it was during the 45-year
Cold War largely depends on the development of the security interests
and the security policy of the Western alliances and Germany's
role within this process. It is clear, however, that as a member
of various alliances, Germany must take up the burden of mutual
security: "Every Western European member state has to make
a military contribution towards a common defense and security
system. The means to fulfill this obligation will be the national
armed forces."[10] Therefore the Bundeswehr has to be a responsive
instrument of Germany's foreign and security policy, able to share
future burdens equally with other allied forces.

These obligations are detailed in the decision of the Federal
Constitutional Court:

According to Article 24(2) of the Basic Law, the federation may
become a party to a system of collective security and in so doing
consent to limitations upon its sovereign powers. The Federal
Constitutional Court also sees in this power conferred by the
Basic Law the constitutional foundation for an assumption of responsibilities
that are typically associated with membership of such a system
of collective security. Hence German servicemen may be deployed
within the scope of UN peacekeeping missions even if the latter
are authorized to use force. The objections submitted by the applicants
[SPD and FDP] on constitutional grounds to the participation of
German forces in the UNOSOM II mission in Somalia, in the NATO/WEU
naval operation in the Adriatic to monitor the UN embargo on the
Federal Republic of Yugoslavia, and in the AWACS monitoring of
the ban on flights in the airspace over Bosnia-Herzegovina, likewise
imposed by the United Nations, are therefore rejected. German
servicemen may also be integrated into NATO formations which are
deployed within the framework of UN operations. This, according
to the Court, is covered by parliament's approval of Germany's
accession to NATO and the UN Charter.[11]

Immediately after the ruling, in July 1994, the German government
asked the Bundestag for approval of the missions of German soldiers
in Southeast Europe. Following a special session of the parliament,
during which the required enabling legislative decisions were
made, the cabinet lifted the restrictions on the use of German
forces as of 27 July. That cabinet decision meant, inter alia,
that the Bundeswehr could follow NATO rules of engagement and
operational orders of responsible NATO commanders without exception.
Among the immediate results were the use of German AWACS crew
members in the Hungarian orbit (supporting NATO forces deployed
in the former Yugoslavia) and participation by German ships in
"stop and search" operations in the Adriatic, including
the territorial waters of Albania and Montenegro.[12] Thus the
German Chief of Staff sees a clear signal from the German government
to become a mature partner in shared responsibilities.

The Constitutional Court's ruling definitely answered the question
posed above: the issue of deployment is about Germany's sovereignty,
about the nation's international obligations, and about the new
role of its armed forces.

Is military strategy tailored to meet the national political
objectives?

The current international security situation makes the development
of national political objectives and a national military strategy
inordinately complex for any nation with international interests
and obligations. The salient features of the international environment
which influence national objectives and consequently national
military strategy include:

the United States' role as the only world power capable of
unrestricted global action;

economic problems and challenges of Western Europe and Japan;

the relatively unstable political landscape in Eastern Europe
and Russia;

the controversies of the multipolar world of the 21st century,
whose powerful northern hemisphere centers will be called to help
the south to solve its problems; and

Germany's role as an ally and a continental middle power with
worldwide economic interests.

The mission and structure of the Bundeswehr are being tailored
to match this strategic environment. In a speech delivered at
the Royal United Services Institute for Defense Studies, London,
on 21 October 1994, General Naumann stated:

The primary task of the Federal Armed Forces will continue to
be the protection of Germany from external threats. But in accordance
with the new political requirements, the German armed forces must
now [in particular after the ruling of the High Court] also be
available as a flexible instrument for peacekeeping and crisis
management. . . .

. . . [Consequently] the armed forces cannot be structured for
only one concrete scenario, as in the past. Part of the Bundeswehr
must be able to respond to a broader spectrum of options. Another
part of the Bundeswehr, that is by far the largest part, must
after a longer preparation time be able to secure the protection
of our country through Alliance defense.[13]

Three categories of forces must be available to German leadership
to fulfill the nation's responsibilities in the new security environment:
the main defense forces, reaction forces, and infrastructure organizations.

The main defense forces (MDF) comprise all the standing and
augmentable forces that would be employed in defense of Germany
and its allies. The augmentable elements of the main defense forces
are the foundation of national defense. They are to be kept at
graduated levels of readiness and must be able to reach prescribed
levels of operational readiness within the time available to make
military preparations for national and Alliance defense. They
are composed of active duty personnel and, to an even greater
extent than before, reservists of all ranks who receive basic
and continuation training during their active military service
and periods of reserve duty training. Selected units of standing
MDF, particularly from the logistic and medical corps, will be
employed in support of the reaction forces, described below.

The reaction forces are those elements of the armed forces
that can be employed for conflict prevention and crisis management
within the Alliance framework and as a contribution to international
peace missions. As standing defense forces, they contribute to
national defense and protect the augmentation of the mobilization-dependent
MDF. If necessary, they can receive specific support from augmentable
elements or from forces of the basic military organization.

Infrastructure units, called the "basic military organization"
are required to exercise command and control of all forces, to
support the operation of the armed forces, to carry out training
and service support functions, to perform civil-military cooperation
tasks, and to support Alliance forces stationed in Germany.[14]

The Bundeswehr is being restructured along the lines described
above to make certain that its organizations and capabilities
are compatible with the new military strategy.

What are the limits of military power in support of national
policy?

The challenge to strategists, now as ever, is to determine in
each national crisis just how the military can contribute to resolution
of the crisis. When the 1994 Defense White Paper declared that
"Germany's ability to act strategically is not only a political
and mental challenge. It is also a question of military capabilities
and options," it echoed similar assessments in comparable
publications in most NATO and other European nations.[15] Political
and intellectual challenges as well as the military capabilities
and options must be considered separately.

Part of the answer to questions about the effects of political
and intellectual challenges to the use of military power appeared
in the Frankfurter Allgemeine Zeitung on 13 July 1994:

To be sure, the Federal Constitutional Court's decision on sending
Bundeswehr troops outside the territory of NATO does not give
the government, any government, a free hand in using the Bundeswehr.
The decision adheres closely to the instances at hand: the Adriatic,
AWACS, Somalia. But the decision also says, and this points to
the future, that the collective security systems the Federal Republic
has joined--the United Nations foremost, but also NATO and the
Western European Union--can change in character, as we have seen
since 1989.[16]

The Süddeutsche Zeitung, in Munich,added the
same day:

Foreign Minister Kinkel has already warned that the restraint
in military matters [practiced] up to now should not be "relinquished
hysterically." He has good reasons for that warning: legally
there will be only a single absolute prohibition in the future--the
prohibition against wars of aggression as identified under international
law. With this decision from Karlsruhe, the most consequential
struggle since the 1955 debate over rearmament [of the Federal
Republic of Germany] comes to an end. The decision changes Germany's
entire foreign and military policy.[17]

Germany is preparing its military to meet new and expanded responsibilities
inherent in full sovereignty as well as those related to full
partnership with its Alliance partners. German participation in
operations will not be automatic. It will always be based on national
values and interests, since there is no obligatory norm within
international law for support of such activities. As General Naumann
commented, "Of course, Germany will continue to exercise
great restraint in the use of military power, and for good reasons.
I think it would send the wrong signal if Germany now prepared
to acquire forward projection capabilities, which its armed forces
currently do not have. In fact, our long-term planning does not
include such a step."[18]

From that understanding the matter of Germany's military capabilities
and options can be addressed. Germany's Federal Minister of Defense,
Volker Rühe, said during a Conference of the Aspen Institute
on 24 August 1994 in Berlin:

Today, the Bundeswehr is still best prepared for the most unlikely
case--an aggression against NATO. It is least prepared for the
most likely case--the new tasks associated with international
crisis management. For this reason the German government has initiated
a fundamental reform of the German armed forces that will give
them the necessary shape to master the challenges of today and
tomorrow. . . . The main emphasis of the reform will be the buildup
of highly professional reaction forces with a high degree of readiness
and availability, and able to cover the entire spectrum of crisis
management tasks.[19]

Fundamental changes in Germany's relations with its Alliance partners
require a new approach to armed forces equipment planning. At
the moment the Bundeswehr is adequately equipped for national
defense at home, since the main defense forces have predominantly
modern equipment at their disposal. For the near future, however,
the high value attached to the crisis reaction capability will
determine the principal materiel procurement requirements for
the Bundeswehr. Priority is being given to equipping designated
reaction forces for international crisis management operations.
Enlarged reconnaissance capabilities are needed as well as internationally
interoperable communications, command, control, and information
systems for disseminating information quickly through several
echelons of command. Steps must be taken to provide logistic and
medical support for units engaged in crisis management operations,
international peace missions, and humanitarian aid activities.[20]
Germany has neither the intention nor the resources to engage
in unilateral military operations of any kind, and thus needs
its major allies to share common burdens and responsibilities
as it prepares to assume its role as a full partner in international
affairs.

What are the alternatives?

Decisions with regard to national security are made in conjunction
with national objectives and national military strategy, i.e.
the protection of Germany from external threats and participation
in peacekeeping and crisis management operations within the framework
of the United Nations. The only means to carry out such decisions
are military forces.

Some Germans doubtless would like NATO and the Bundeswehr to disappear
entirely. Such an outcome, however, cannot be considered to be
a realistic alternative to the current political position of full
partnership with allied and friendly nations. Should Germany fail
now to meet its international obligations, results could include
loss or reduction of credibility, sovereignty, and freedom of
action within the international political environment. Consequently
there is no serious alternative to pursuing the stated national
security interests and objectives.

Alternatives, however, should be defined and evaluated before
deciding to conduct military operations in support of national
policy. This is of particular importance when conducting crisis
management operations. The Bosnia-Herzegovina conflict shows clearly
the entire spectrum of alternatives that UN and NATO decisionmakers
have to take into consideration prior to the use of military force.
The alternatives range from simply demonstrating military readiness,
to embargo as an economic sanction, to blockade, to containment,
and finally to military intervention as the last resort.

These are the kinds of decisions that the ruling of the Constitutional
Court now requires of German politicians. The alternatives, therefore,
will no longer be "Are we or are we not allowed to
participate?" but rather "Do we or do we not want
to participate?" in military operations within the UN and
NATO frameworks. This new and unaccustomed situation, as suggested
in one German newspaper, "despite the clear wording of the
Karlsruhe decision, will cause domestic conflicts over the new
role of the Bundeswehr in international crisis management to continue."[21]
The requirement to address these questions in each instance of
national policymaking leads directly to what is perhaps the most
important question of all.

How strong is the home front?

Consider the historical record from the German perspective:

For the German people [the ruling of the High Court] means an
enormous psychological adjustment. The Federal Republic never
was a power of military intervention like the United States, England,
or France. Two lost wars have taken away the pride in military
performance. It took a great deal of trouble to accept the Bundeswehr's
defensive mission throughout the last four decades. Therefore
it will be very hard to achieve general approval for worldwide
operations with German participation.[22]

All else follows from understanding this view of the German experience
in the 20th century.

Not only the German people and those who have to make the decisions,
but the German soldier as well will have to adjust to the new
situation following the 1994 court decision. Those in the military
will have to develop a new way of seeing themselves. This process
will include participation of German citizens, the parliament,
and individual soldiers in shaping a new perception of the role
and functions of our military forces. Change of this magnitude
will take time. A broad national consensus about the Bundeswehr
and its new role and missions lies yet in the distant future.

Recent polls, however, indicate that there is growing support
among Germans for UN peacekeeping operations and for sharing responsibilities
with other nations. Public opinion regarding the ruling of the
Constitutional Court was overwhelmingly supportive, with a general
feeling that the court had judged wisely. Relief that there would
be no further legal hairsplitting seemed to be the common conclusion.
The politicians and the press pointed out that normality finally
had reached Germany, which was no longer exempt from the full
measure of responsibilities inherent in sovereignty. National
security decisionmaking has now been shifted to the appropriate
forum, and the answers to international problems are now to be
provided by elected politicians, not by lawyers and judges.[23]

The results of the October 1994 parliamentary elections, returning
to office the Kohl government which had supported the participation
of the Bundeswehr in UN operations outside the NATO area, indicate
that the German voters agree with this broader international role.

Conclusion

Bonn, 31 December 1995:

NATO and with it the Bundeswehr are facing the greatest mission
of their history. With the full support of the parliament and
the people our soldiers will help to secure peace in former Yugoslavia.
While making the preparatory decisions we received [so] much encouragement
and support that we can speak of a new consensus. Germany is meeting
its obligations and can be proud of its soldiers.

This excerpt of Minister of Defense Rühe's address to Germany's
Federal Armed Forces, as well as the overwhelming majority in
favor of the 6 December 1995 decision of the parliament to provide
troops for the NATO mission in Bosnia,[24] proves that the German
Constitutional Court's ruling of 12 July 1994 has thus had a significant
effect on national security decisionmaking. Despite the fact that
the ruling itself was not a security decision as such, it permits
Germany to move away from its privileged and special position
toward normality in Europe and in its activities as a member of
the UN and NATO. It emphasized the supremacy of parliament over
the military and put the entire responsibility for Germany's foreign
and security policy on the political leadership, which is now
challenged to decide when and to what extent the Bundeswehr is
going to participate in WEU, NATO, and UN operations. The formal
clarification of Germany's Basic Law ended debate over whether
Germany's armed forces are allowed to be employed outside
NATO territory to share with its allies the burdens of crisis
management and humanitarian relief. Without question, the ruling
of the high court can be considered a historic decision, although
politicians could have made it superfluous by achieving consensus
on the interpretation of the Basic Law years ago.

German participation in operations outside its borders is not
automatic, however. Each mission must be decided on individually,
based on national values and interests at the time the decision
is made. The Chief of Staff of the German armed forces has posed
his own set of questions for any such operation:

Is it in our interest?

Are the objectives of a given operation achievable?

Can the operation be delimited before it is begun?

Are the costs--and not only in financial terms--calculable
and acceptable?[25]

It is noteworthy that America's Secretary of Defense during the
Reagan Administration, Caspar Weinberger, posed similar questions.
Their restraining rather than enabling character clearly emphasizes
the intention to use military force only as a last resort.

General Naumann's list does not explicitly include what is perhaps
the most important question in determining future German participation
in multinational operations: "How strong is the home front?"
But the German political and military leadership is clearly aware
that it can act only with the approval and support of the German
people.

NOTES

The author extends his thanks to Colonel Joseph A. Engelbrecht,
Jr., USAF, of the Air War College, for his assistance in the preparation
of this article.

1. Germany is a member state of the Western European Union (WEU),
which is projected to be an integral part of the European Union,
becoming its defense component. The aim of the WEU is "to
afford assistance to each other, in accordance with the Charter
of the United Nations, in maintaining international peace and
security and resisting any policy of aggression." The parties
to the treaty express their will to promote the unity and encourage
the integration of Europe. The core of the WEU Treaty is the article
under which the allies pledge to render mutual assistance if one
of them should be the object of an armed attack in Europe. The
WEU allows the Europeans to assume greater responsibility for
their security and to be capable of taking action in contingencies
where NATO does not commit itself.

3. The restrictive interpretation of the Basic Law did not prohibit
the use of military forces for humanitarian purposes. German soldiers
have been providing humanitarian support for more than 30 years,
comprising over 120 missions in 53 countries all over the world.
As a member state of the UN, Germany has participated on six operations
since 1990:

UNPROFOR (United Nations Protection Force in Ex-Yugoslavia)
including airlift to Sarajevo, control of the embargo in the Mediterranean,
and AWACS missions to control the "no-fly-zone" over
Bosnia-Herzegovina.

UNOSOM II (United Nations Operations in Somalia) airlift operations
for the immediate delivery of food for the people of Somalia and
logistic support for a brigade.

4. The German Bundestag is the parliamentary assembly representing
the people of the Federal Republic of Germany. It is elected by
the people every four years. It may be dissolved prematurely only
under exceptional circumstances, the final decision lying with
the Federal President. The Bundestag's main functions are to pass
laws, to elect the Federal chancellor, and to keep track of the
government. The two parties that brought the issue to the Constitutional
Court are the SPD and FDP. The SPD is the Social Democratic Party
of Germany, a recreation of the former mainly labor-oriented party
of the same name. It is currently in opposition. The FDP is the
Free Democratic Party, which has adopted programs in the tradition
of German liberalism. It is currently in coalition with the ruling
parties, the Christian Democratic Union of Germany, CDU, and the
Christian Social Union, CSU.

5. The main task of the Constitutional Court is to decide questions
of constitutional law and to settle disputes in constitutional
matters. Its function is to enforce the basic principles laid
down in the constitution and to safeguard the constitution against
possible violations by state institutions. Unlike the Supreme
Court in the United States, which can avoid adjudicating the constitutionality
of certain political matters, according to the "political
question doctrine" the German Constitutional Court is bound
to uphold the constitution even if this may undermine the authority
of the parliament.

7. General Klaus Naumann, Chief of Staff, German armed forces,
address at a round table at the Konrad Adenauer Foundation, in
Washington, 15 July 1994.

8. Ibid.

9. Philip A. Crowl, "The Strategist's Short Catechism: Six
Questions Without Answers," The Harmon Memorial Lectures
in Military History, No. 20 (Colorado Springs, Colo.: US Air Force
Academy, 1978), p. 4. Dr. Crowl's first five questions in this
source form the outline on which the present analysis is organized.
His sixth question is "What Have I Overlooked?"

12. German MOD, Navy Staff, III 2 (Bonn: October 1994). As of
18 October a total of 27 search missions by German ships were
reported, which clearly indicates the beginning of a new era of
German cooperation in international security affairs.

13. German MOD, White Paper 1994 (Bonn: 5 April 1994), p. 89.

14. Ibid.

15. Volker Rühe, German Federal Minister of Defense, luncheon
address at the Conference of the Aspen Institute on 24 August
1994 in Berlin.

Lieutenant Colonel Karl-Heinz Börner, German Air Force, is
the German Air Force's air defense advisor to Headquarters, German
Army. Colonel Börner has held numerous air defense command
and staff positions including service on NATO staffs. He is a
1995 graduate of the US Air War College.